The trial court has discretion over a request for continuance and a denial of such a request will not be reversed absent a showing of palpable and manifest abuse of the court's discretion. We find *204 there was no error in holding the hearing and sentencing appellant in absentia. The trial court found appellant had refused his opportunity to be present, thereby waiving his rights, and the hearing could be held without him pursuant to Pa.R.Crim.P. Defense counsel had sought a continuance of the hearing because appellant was still in New York, would not return to Philadelphia and counsel was unable to consult with him or contact him in New York. The manager, Jade Wong, was discovered calling police and one of appellant's co-conspirators shot her in front of two eyewitnesses.Īppellant's first issue raises the propriety of the trial court refusing a continuance and conducting the post-trial motions hearing and sentencing without appellant being present. The owner refused their demands so they tried to open the cash register. Apparently, they were members of a New York gang and had collected 'dues' from Chinatown restaurants there. The facts are as follows.Īppellant and two others entered the Ho Sai Gai Restaurant in Philadelphia on Augto extort 'protection' money from the owner. A motion for reconsideration was filed and denied and appellant now raises six issues on appeal. The robbery conviction merged with the murder for sentencing purposes.

Finally, on December 28, 1988, a hearing was held to dispose of the post-trial motions and appellant was sentenced in absentia to five to ten years imprisonment for conspiracy and two and one-half to five years imprisonment for possessing an instrument of crime, all sentences to run consecutively. Three hearings on the matter were held in New York and appellant, represented by counsel, refused to consent to his return to Pennsylvania (transcripts from October 31, November 4 and Novemare included in the case record). The hearing on post-trial motions *203 was continued to allow the district attorney an opportunity to have appellant returned for the hearing and sentencing. At the end of August, however, appellant was mistakenly sent back to New York, on the Philadelphia district attorney's authorization, to continue serving a sentence which preexisted his trial in the instant case. Post-trial motions were timely filed and a hearing was scheduled for September 8, 1988.

Immediately after trial appellant was sentenced to the mandatory term of life imprisonment for the murder, but sentencing on the other convictions was deferred pending the disposition of post-trial motions.

Atty., Philadelphia, for Com., appellee.Īppellant was convicted by a jury on Jof second degree murder, criminal conspiracy, robbery and possessing an instrument of crime.

The Capital by A.H. Lee